Ohana Control Systems, Inc. v. City & County of Honolulu ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OHANA CONTROL SYSTEMS, INC.; No. 22-15956
MICHAEL AMIR BOROCHOV,
D.C. No.
Plaintiffs-Appellees, 1:21-cv-00345-JAO-KJM
v.
MEMORANDUM*
CITY & COUNTY OF HONOLULU; et al.,
Defendants,
and
TIM CAIRES; et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Hawaii
Jill Otake, District Judge, Presiding
Submitted June 8, 2023**
Honolulu, Hawaii
Before: BADE, BUMATAY, and SANCHEZ, Circuit Judges.
Partial Dissent by Judge BUMATAY.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Appellants Jeffrey Lee, Tim Caires, and David Malone (collectively,
“Appellants”) appeal the district court’s order denying their motion to dismiss
Appellees Ohana Control Systems, Inc. and Michael Amir Borochov’s
(collectively, “Ohana”) First Amended Complaint based on qualified immunity,
and its order denying partial reconsideration of the same. We have jurisdiction
under 28 U.S.C. § 1292.1 We affirm in part, reverse in part, and remand.
“The doctrine of qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation
marks omitted). An officer will be denied qualified immunity “only if (1) the facts
alleged, taken in the light most favorable to the party asserting injury, show that
the officer’s conduct violated a constitutional right, and (2) the right at issue was
clearly established at the time of the incident such that a reasonable officer would
have understood her conduct to be unlawful in that situation.” Torres v. City of
1
We directed the parties to address our jurisdiction over this action
considering Pelletier v. Federal Home Loan Bank of San Francisco, 968 F.2d 865,
871 (9th Cir. 1992) (“[A]n official defendant claiming qualified immunity is
entitled to immediate appellate consideration of . . . only . . . the narrow and purely
legal [issue] of whether the facts alleged . . . support a claim of violation of clearly
established law.” (internal quotation marks omitted)). We conclude Pelletier does
not divest us of jurisdiction. See, e.g., Knox v. Sw. Airlines, 124 F.3d 1103, 1107
(9th Cir. 1997).
2
Madera, 648 F.3d 1119, 1123 (9th Cir. 2011).
Ohana alleges Appellants violated the Equal Protection Clause based on a
“class-of-one” theory. This requires Ohana to demonstrate Appellants
(1) intentionally (2) treated it differently (3) from others similarly situated
(4) without a rational basis. See N. Pacifica LLC v. City of Pacifica, 526 F.3d 478,
486 (9th Cir. 2008).
We may analyze the two prongs of qualified immunity in any order. See
Ballentine v. Tucker, 28 F.4th 54, 61 (9th Cir. 2022). We begin with whether the
right at issue was clearly established at the time of alleged constitutional
deprivation.
Relying on Village of Willowbrook v. Olech, 528 U.S. 562 (2000), the
district court concluded the right at issue was freedom from “a government
official . . . treat[ing] similarly situated individuals differently without a rational
basis.” Appellants contend this conclusion is “incorrect as a matter of law”
because the stated right is too generalized. But we have consistently read Olech
broadly as clearly establishing the right to be free from differential treatment by the
state without a rational basis. See, e.g., SmileDirectClub, LLC v. Tippins, 31 F.4th
1110, 1122–23 (9th Cir. 2022); Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1025
(9th Cir. 2011); Rosenbaum v. City & Cnty. S.F., 484 F.3d 1142, 1157 n.11 (9th
Cir. 2007); Engquist v. Ore. Dep’t Agric., 478 F.3d 985, 993 (9th Cir. 2007);
3
SeaRiver Mar. Fin. Holdings Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002); see
also N. Pacifica, 526 F.3d at 486. And this reading accords with the broader
principle of qualified immunity, which is intended to shield officers from liability
where a reasonable person would not have known the alleged acts violate a
constitutional right. Torres, 648 F.3d at 1123. We accordingly affirm the district
court’s determination that the right claimed by Ohana was clearly established at the
time of the alleged violations.
We also affirm the district court’s conclusion that the First Amended
Complaint alleges facts sufficient to show Lee’s conduct violated a constitutional
right. Fairly read, Ohana alleges that Lee harbored anti-Semitic feelings and a
general animus against Ohana’s owner and that, based on these feelings, Lee—
cloaked with the power of the state—falsely represented to one of Ohana’s clients
that Ohana had failed a final inspection. According to Ohana, Lee singled Ohana
out for differential treatment—that is, Lee did not make false representations to the
clients of similarly situated fire-alarm installation firms. These allegations
sufficiently allege a “class-of-one” equal protection claim and the district court
correctly denied Lee qualified immunity against the claim.
We disagree, however, with the district court’s conclusions that Ohana has
sufficiently alleged a “class-of-one” equal protection claim against Caires and
Malone.
4
Ohana alleges that Caires violated its constitutional rights by emailing the
company that manufactures the alarm systems Ohana installs and inquiring about
its products in a disingenuous and threatening way.2 But those actions alone do not
demonstrate that Caires intended to treat Ohana differently from similarly situated
comparators for an arbitrary or impermissible reason. There are no allegations, for
example, that the emails actually referred to Ohana, nor that Ohana was harmed by
Caires’s emails. Accordingly, Ohana fails to plausibly allege that Caires violated
its rights under the Equal Protection Clause.
As for Malone, Ohana alleges he violated the Equal Protection Clause by
subjecting Ohana to more rigorous regulatory requirements than other similarly
situated installation firms. Ohana, however, does not allege that Malone inspected
any other competitors’ projects and therefore does not allege that Malone treated
Ohana differently.
For these reasons, we affirm the district court’s denial of qualified immunity
for Lee, reverse the district court’s denial of qualified immunity for Caires and
Malone, and remand for proceedings consistent with this disposition.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
2
Ohana also alleges Caires treated Ohana differently from similarly situated
comparators when he required Ohana—and only Ohana—to install fireman’s
phone jacks. These allegations are not addressed in Ohana’s briefing, and they are
insufficient to establish an equal protection violation because Ohana does not
allege that Caires ultimately required the installation of these phone jacks.
5
FILED
Ohana Control Systems, Inc. v. City & County of Honolulu, No. 22-15956 JUN 26 2023
Bumatay, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the majority’s conclusion that Ohana Control Systems has not
sufficiently alleged a “class-of-one” equal protection claim against Tim Caires and
David Malone and that they are entitled to qualified immunity. So I concur with that
part of the majority decision.
But I would also grant qualified immunity to Jeffrey Lee. Even if Ohana
adequately pleaded an equal protection claim against Lee, Ohana has not sufficiently
shown that Lee violated clearly established law. Lee is thus entitled to qualified
immunity, and I dissent from that part of the majority decision.
The district court concluded that Lee, Malone, and Caires violated clearly
established law as set forth in Village of Willowbrook v. Olech, 528 U.S. 562 (2000).
In that case, the defendant demanded a 33-foot easement as a condition of connecting
the plaintiff’s property to the municipal water supply, when it only required a 15-
foot easement of other similarly situated property owners. Id. at 565. The district
court held that the Olech established “a governmental official cannot treat similarly
situated individuals differently without a rational basis.” Such a generalized
statement of law cannot serve as a basis of “clearly established” law to deny a state
official qualified immunity.
In analyzing whether rights are clearly established, we look to then-existing
“cases of controlling authority” or, absent such cases, to a “consensus” of persuasive
authorities. Evans v. Skolnik, 997 F.3d 1060, 1066 (9th Cir. 2021). “A clearly
established right is one that is sufficiently clear that every reasonable official would
have understood that what he is doing violates [it].” Rico v. Ducart, 980 F.3d 1292,
1298 (9th Cir. 2020) (simplified).
The Supreme Court has cautioned that we should not analyze whether rights
are clearly established “at a high level of generality.” Kisela v. Hughes, 138 S. Ct.
1148, 1152 (2018). Our inquiry is whether “the violative nature of [the defendant’s]
particular conduct is clearly established . . . in light of the specific context of the
case.’” Rico, 980 F.3d at 1298. The Supreme Court has made clear that we must
consider the “specific facts under review.” Hamby v. Hammond, 821 F.3d 1085,
1091 (9th Cir. 2016). See also City & Cnty. of San Francisco v. Sheehan, 575 U.S.
600 (“We have repeatedly told courts—and the Ninth Circuit in particular—not to
define clearly established law at a high level of generality.”)
The district court’s approach conflates (1) caselaw that establishes the
existence of the “class of one” cause of action with (2) caselaw that would put a
reasonable officer on notice that his conduct was unlawful in a particular situation.
The Supreme Court has made clear that the former does not satisfy requirements for
the latter. Ashcroft v. al-Kidd, 563 U.S. 731, 742 (9th Cir. 2011) (“The general
proposition, for example, that an unreasonable search or seizure violates the Fourth
Amendment is of little help in determining whether the violative nature of particular
conduct is clearly established.”).
The cases cited by the majority establish the existence of a “class of one” equal
protection claim—they do not announce clearly established law that would put Lee
on notice that his conduct in this particular case obviously violated the law. See
SmileDirectClub, LLC v. Tippins, 31 F.4th 1110, 1122–23 (9th Cir. 2022)
(recognizing availability of “class-of-one” claim); Gerhart v. Lake Cnty., Mont., 637
F.3d 1013, 1025 (9th Cir. 2011) (finding a constitutional right for Gerhart not to be
treated differently by the government than other similarly situated landowners were
treated); Rosenbaum v. City & Cnty. S.F., 484 F.3d 1142, 1157 n.11 (9th Cir. 2007)
(recognizing availability of “class-of-one” claim); Engquist v. Ore. Dep’t Agric., 478
F.3d 985, 993 (9th Cir. 2007) (“Based on Olech, we have applied the class-of-one
theory in the regulatory land-use context to forbid government actions that are
arbitrary, irrational, or malicious.”); SeaRiver Mar. Fin. Holdings Inc. v. Mineta, 309
F.3d 662, 679 (9th Cir. 2002) (recognizing availability of “class-of-one” claim); N.
Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (recognizing
availability of “class-of-one” claim).
These cases do not suggest that Olech serves as blanket “established law”
covering any conceivable class-of-one equal protection claim. Nor do they suggest
that Lee would have been on notice that his specific conduct violated Ohana’s
constitutional rights. Ohana contends that Lee falsely told an association of
apartment owners that an alarm system installed by Ohana on their property was
never inspected for a final acceptance test, which then required a fire watch. These
allegations are unlike those in Olech, where the defendant violated clear zoning
requirements (a 15-ft easement requirement) in an “irrational and wholly arbitrary”
way. See Olech, 528 U.S. at 565. This case is also miles apart from Gerhart, where
ten property owners were allowed to build approaches to a county road, but the
plaintiff was rejected for no reason. 637 F.3d at 1022. None of the other cases cited
above have validated a class-of-one claim concerning property, building, or land use
permits or regulations. And here, Ohana hasn’t shown what clear standardized
regulation or requirement Lee violated by lying to the association.
Qualified immunity protects “all but the plainly incompetent or those who
knowingly violate the law.” Rico, 980 F.3d at 1298. Under the district court’s
approach to this case, we collapse the two-step qualified immunity test into a single
step—now, any well-pleaded class-of-one claim automatically meets the clearly
established law requirement. For this reason, I respectfully dissent from the denial
of qualified immunity for Lee.